GOP’s fight over surveillance will stretch into new year

The spiking of Speaker Mike Johnson’s (R-La.) plan to bring to the floor competing bills to reform the nation’s warrantless surveillance powers is putting the House back at square one for addressing Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Johnson had hoped a floor battle between the House’s Judiciary and Intelligence committees would resolve a months-long standoff over how to hammer out differences between the two panels’ preferred packages.

Leadership backed off the idea of a floor showdown after some Republicans on the House Rules Committee balked at the plan — a sign Johnson is facing the same conference divisions that toppled his predecessor.

“The Speaker put forward a very reasonable proposal, which is, ‘Let’s let the majority of the House decide,’ which, to my understanding, was the way this place has always done business for 200 years. And then, you know, a bunch of people who have devoted no time whatsoever to understanding 702 rolled out the dumpster in Rules Committee and lit it on fire. And so here we are,” said Rep. Jim Himes (D-Conn.), the top Democrat on the House Intelligence Committee. 

An extension of FISA 702 powers was included in the defense policy bill, giving Congress until mid-April to come up with a plan for a long-term reauthorization of the law. 

But the two panels, which have produced bills that generally overlap, remain at odds over numerous provisions — including a key difference on whether to include a warrant requirement before reviewing information collected on Americans.

FISA 702 allows the government to spy on foreigners located abroad, but Americans who communicate with those targets have their information swept up in the process. The process creates a database of information that can be tapped by law enforcement — alarming privacy activists amid documented cases of improper searches by the FBI.

The House Judiciary bill would require the intelligence community to get a warrant to review any information they’ve already obtained on Americans. But the Intelligence bill focuses more on FBI reforms, arguing a warrant requirement would blind law enforcement to information it has lawfully collected and may need to act on in real time.

Abandoning Johnson’s idea for a head-to-head floor showdown on the two bills leaves unclear how the House will go about sorting out their differences — something a working group of the two committees were unable to do. 

House Judiciary Chair Jim Jordan (R-Ohio) is insistent the concept of a warrant make it to the House floor. 

“The whole body should weigh in on something this fundamental, because all we’re saying is if they want to search around this database and use your identifier, your phone number, your email, just have a warrant. It’s a big database, and you go searching around this haystack using identifiers of a U.S. person — seems to me you should have a warrant. So we want to vote on that,” Jordan told reporters this week.

Johnson said Wednesday he was glad the House would have more time to review a complex topic.

“There’s a disagreement between the two committees. We’re working towards consensus, but this is a very, very serious matter. This isn’t some minor policy in our law. This is about keeping Americans safe. And so we take the responsibility seriously,” he said. 

“I am not one who wants to rush this. I don’t think we can make a mistake. We got to get it right. And so we’re going to allow the time to do that,” he said, adding that the defense bill gives them an extension to do that.

But Johnson also said there are “two committees of jurisdiction” on the matter, something likely to cause grumbles from House Judiciary members who have suggested they hold ownership of the topic.

In a last-ditch effort to mobilize members, House Republicans last week had a conference meeting about the two bills that reportedly got heated, with one lawmaker accusing the Intelligence Committee of misrepresenting the Judiciary bill.

At the same time, Democrats were meeting with national security leaders for a briefing on the two bills.

Democrats are likewise divided on the topic, with many backing the call for a warrant.

Himes said many of those voices seemed receptive to criticism that the Judiciary bill may not be the right approach for doing so.

“I think that a lot of critics of the Intelligence bill listened hard to [Deputy Attorney General] Lisa Monaco and [Director of National Intelligence] Avril Haines and [CIA Director] Bill Burns and [Attorney General] Merrick Garland when they all unanimously said the Judiciary bill has some very significant problems. I think people were listening to that. And look, that’s good,” Himes said.

But he acknowledged many of those same voices won’t be persuasive with Republican colleagues.

“If the Republican Party is in such a place that the attorney general of the United States, the director of national intelligence, the head of the FBI, and all of these people look them in the eye and say, ‘This will make Americans less safe,’ and they don’t want to hear it — I don’t know what to say,” he said.

“We’re now in a world where fever dreams and conspiracy theories are driving American national security.”

Despite the difficult path this year, some GOP members are feeling optimistic that things said will come together in 2024.

“I do think there’ll be a concerted effort to work together in January and February to come to a resolution,” said Rep. Darin LaHood (R-Ill.), a member of the Intelligence Committee. 

“I think cooler heads will prevail. I think we’re waiting for direction from the Speaker on it, on where we need to go with the differences in the two bills.”

But some Democrats say they see little reason for optimism given Republicans feuding over even how to proceed with a vote to settle the matter.

“I don’t think Speaker Johnson knows. He appears to be lost in the woods on this one. So I’m not sure what the path forward is. … I’m not sure he has a plan for how to get very critical national security bills over the finish line,” said Rep. Jason Crow (D-Colo.), also an Intelligence Committee member.

“The dynamic remains the same on everything. … You have [an] extreme wing of the Republican Party that continues to hold this entire body hostage. And until the more moderate, pragmatic Republicans are empowered, and/or empower themselves and stand up against that extreme wing, we’re all going to continue to spin our wheels here and not get these things done.”